Livingston v. Haywood , 11 Johns. 429 ( 1814 )

Thompson", Ch. J.

delivered the opinion of the court. This Is an action of trespass against the defendant, xvho holds the locus in quo, as assignee of the tenant for life, under a lease given by the ancestor of the plaintiff. The plaintiff claims as devisee in remainder, under the xvill of his father, in which the locus in quo is devised to his xvife, Mary, during her life, and after her death to the plaintiff) Henry Livingston, his heirs and assigns for ever.

The question is, xvhether an action of trespass xvill lie, by the devisee in remainder, during the continuance of the life estate. The statute, (1. N. R. L. 527.) which is supposed to authorize the action, is in these words : “ That it shall and may be lawful for any person, or persons, seised of an estate in reHiainde? or reversion, to maintain an action of waste or trespass, for any injury done to the inheritance, notwithstanding any intervening estate for life or years.” This statute creates a nexv remedy. The action of xvaste could not be maintained against a tenant for life, except by him xvho had the immediate estate of inheritance expectant on the determination of the estate for life. So that, if between the estate of the tenant for life, who commits waste, and the subsequent estate of inheri lance, there was interposed an estate of freehold, to any person in esse, during the continuance of such interposed estate, the action of waste was suspended. (1 Cruise, 70. s. 40.)

The plaintiff, Henry Livingston, stood in that situation, and. during the continuance of the life estate of Ms mother, could not, without the aid of the statute, maintain the action of waste. But the action of waste lies only against the tenant, or his assignee or heirs, and cannot be maintained against a stranger. Nor could any person, unless he was in the actual possession of the land, maintain trespass for an injury done to the inheritance. The statute must have been intended to provide for these two cases; to give the action of waste to the reversioner or remainderman,’against the tenant, notwithstanding any intervening estate for life or years; and the action of trespass against a stranger, notwithstanding he had not the actual possession. No other rational construction can be given to the statute. It cannot be pretended that it gives an action of waste against a stranger; and yet, from the words of the statute, this might be urged with the same propriety as that it gives trespass against the tenant. It must be understood, as giving to the remainder-man, or reversioner, an action of waste, where waste is the appropriate remedy, and trespass, where trespass is the appropriate remedy, notwithstanding any intervening estate for life or years. According to this construction, the plaintiff cannot maintain the action of trespass, and the motion to set aside the nonsuit must be denied.

Motion denied,